Change of Domicile PDF Print E-mail
Written by Robert Stelmock   
Monday, 16 August 2010 00:00

I.    Overview

     Most divorce judgments, many support orders and orders of filliation have a paragraph in them that tells parents they must seek the court's permission before they can move out of state with the minor child or children of the Parties or move away more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued.  This applies to a parent who has primary physical custody, and would apply to both parents if they have shared physical custody.

     According to Michigan Court Rule (M.C.R. 30211 (C)(1)), "The order or judgment awarding custody of a child must provide that the domicile or residence of the child may not be moved from Michigan without the approval of the judge who awarded custody or the judge's successor".   Court approval can be obtained in two ways; by stipulation and agreement between the parties or absent an agreement between the parties by filing a motion and requesting a hearing.

II.    Procedural

     A.    An order or judgment concerning custody of a minor child must contain a provision that the child shall not be removed from the State of Michigan without the approval of the judge who awarded custody or the judge’s successor. MCR 3.211(C).

     B.    An order to permit a removal from the State of Michigan is required before a move can occur. The order may be entered either by consent or by the court after hearing.

     C.    Parties who are in pro per who agree to a removal from the state may obtain a form consent order from the Friend of the Court office.

III.    Statute

     A.  MCL 722.31 (effective January 9, 2001)

Sec. 11

1.  A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.

2. A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4) permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to one of the child’s parents.

3. This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child’s 2 residences were more than 100 miles apart. This section does not apply if the legal residence change results in the child’s 2 legal residences being closer to each other than before the change.

4. Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court’s deliberations:

     a. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

     b. The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

     c. The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

    d. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

    e. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

    f.  Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent’s agreement as to how a change in either of the child’s legal residences will be handled. If such a provision is included in the order and a child’s legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”

    g. If this section applies to a change of a child’s legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.

  IV.    Case Law

      A.    Dick v Dick, 147 Mich App 513, (1985) summarizes the standards for deciding removal petitions, employing the test from the New Jersey case of D'Onofrio v D'Onofrio.

     B.    Under D'Onofrio v D'Onofrio, 144 NJ Super 200, 206-207, 365 A2d 27 (1976), aff'd, 144 NJ Super 352, 365 A2d 716 (1976) the trial court must consider:

          1.    Prospective advantages of the move for improvement of general quality of life for custodial parent and child(ren).

          2.    Integrity of the motives of the custodial parent in seeking to remove in order to determine whether the move is inspired primarily by a desire to frustrate the parental relationship of the non-custodial parent.

          3.    Is the custodial parent likely to comply with this state's parenting provisions once s/he is no longer in the state?

          4.    Integrity of the non-custodial parent in opposing the move. For example, consider extent to which opposition is motivated by desire to achieve financial advantage.

          5.    Will there be a realistic opportunity for parenting time in lieu of the weekly pattern which can foster an adequate basis for preserving and fostering the parental relationship between the non-custodial parent and child(ren) if removal is allowed?

 If you are considering a change of domicile please call us, 734 927-9782, today so we can discuss your matter.

The information you obtain at this site is not, nor is it intended to be, legal advice and does not establish an attorney-client relationship. Please consult the Law Offices of Stelmock & Associates, PLLC, 734 927-9782 for individual advice regarding your own situation.
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Last Updated on Monday, 16 August 2010 22:20
 
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